Sentso Kelumetse Ramochela ( In his capacity as the duly appointed Executor of the Estate of Late Robert Molapo) V NEDBANK Lesotho Limited (CCT/0043/2024) [2025] LSHC 198 (14 August 2025)

IN THE HIGH COURT OF LESOTHO (COMMERCIAL DIVISION) HELD AT MASERU CCT/0043/2024 In the matter between: SENTŠO KELUMETSE RAMOCHELA N. O (In his capacity as the duly appointed executor of the estate of late Robert Molapo) PLAINTIFF and NEDBANK LESOTHO LIMITED DEFENDANT Neutral Citation: Sentšo Kelumetse Ramochela N. O v Nedbank Lesotho Limited [2025] LSHC 198 Comm. (14 AUGUST 2025) CORAM: MOKHESI J HEARD: 10 JUNE 2025 DELIVERED: 14 AUGUST 2025 SUMMARY CIVIL PRACTICE: This matter concerns a points of law which were raised by the defendant under Rule 43(3) of the High Court Civil Litigation Rules 2024- The points were that the plaintiff as the executor of the deceased estate lacks a legal standing to sue, and secondly, the non-joinder of the Master of High Court in the proceedings- Held, the point of law of non-joinder should succeed with costs for failure of the plaintiff to comply with the provisions of Rule 75 of the High Court Civil Litigation Rules 2024. ANNOTATIONS Books Meyerowitz Administration of Estates, 2007 ed. Van Loggerenberg Erasmus Superior Court Practice 2nd ed. Vol.2 (Juta) Legislation High Court Civil Litigation Rules 2024 Cases Qocha and Others v Nthongoa C of A (CIV) NO. 49/2016 (dated 7 December 22018) The Executor Estate Late Robert Mohapi – Teboho Mohapi and Others C of A (CIV) No.3 of 2024 (unreported) South Africa Booysen and Others v Booysen and Others 2012 (2) SA 38 (GSJ)) JUDGMENT [1] Introduction This judgment concerns preliminary legal points which were raised under Rule 43(3)(b) of the High Court Litigation Rules 2024 during case planning conference. The two legal points were raised by the defendant, and they are: the plaintiff’s lack of standing to sue as the executor of the estate in question, and (ii) non-joinder of the Master of the High Court in the proceedings. [2] Background facts The plaintiff was appointed the executor of the estate of the late Robert Mohapi, and as a result he opened a bank account with the defendant. He was the sole signatory. On 06 November 2023 the office of the Master of the High Court (Assistant Master of High Court) wrote a letter to the defendant in terms of which it was notified that the plaintiff’s letters of Administration had expired ant that it would not be renewed. The letter further informed the defendant that the plaintiff did not have authority of the Master of the High Court to operate the Estate late Robert Mohapi’s bank account. The defendant was warned not to allow anyone including the plaintiff to operate the stated bank account without the Master’s written authority. [3] On 23 November 2023, the Assistant Master of the High Court authored a letter directed at the defendant in terms of which she introduced Mr Teboho Mohapi as the curator bonis of the abovementioned estate pending appointment of a new executor. In the letter, the defendant was further requested to assist Mr Teboho Mohapi withdraw an amount of M60,000.00 from the estate’s bank account “for the beneficiary maintenance and payment of debts into” a nominated bank account. Following this instruction, the estate’s bank account was debited with this amount. It was following this transaction that the plaintiff sued the defendant to refund into the estate’s bank account the equivalent of the amount of money by which the bank account was debited. The plaintiff did not join the Master of the High Court in the proceedings. [4] It should, however, be mentioned that there was a pending litigation between the plaintiff as the executor of the estate and the defendant, Mr Teboho Mohapi and the Master of the High Court. At the heart of that litigation was the removal of the plaintiff as the executor by the Master of the High Court and the appointment of Mr Teboho Mohapi as the curator bonis. At the core of the dispute was the procedural fairness of the decision of the Master of the High Court in removing the plaintiff as the executor. The case reached the Court of Appeal on 01 November 2024 wherein the apex court – The Executor Estate Late Robert Mohapi – Teboho Mohapi and Others C of A (CIV) No.3 of 2024 (unreported) – agreed with the plaintiff that his removal by the Master of the High Court did not comply with the principles of natural justice. [5] I turn to deal with the points of law raised: (i) Lack of locus standi in judicio. The defendant’s contention in this regard is that the plaintiff is not in possession of valid letters of administration giving him authority over the estate removed as the executor by the Master of the High Court. As already stated, the plaintiff was successful in challenging the purported removal, as a result, at the time when he sued out the summons against the defendant, he was a validly appointed executor of the estate. I take judicial notice of that fact. The Law and discussion [6] (ii) Non-joinder of the Master of the High Court The defendant’s contention is that the Master of the High Court exercises supervisory powers over all the executors of the deceased estate and therefore she ought to have been joined in these proceedings. The plaintiff on the one hand disputes that there was no non-joinder of the Master of the High Court because as the executor of the deceased estate his relationship with the defendant was that of a bank-customer which the Master has nothing to do with. He argued that the relationship was founded on private law of contract, and that he was fulfilling his exclusive duties as the executor in terms of the law. [7] The deceased estate is not a separate persona, but the executor is a person in whom the assets and the liabilities temporarily reside in a representative capacity. The executor has locus standi to sue or to be sued. (Meyerowitz Administration of Estates, 2007 ed.; Booysen and Others v Booysen and Others 2012 (2) SA 38 (GSJ)). In this vein the executor – plaintiff – would have an absolute right to sue the bank for unauthorised debits made by the bank on the estates’ bank account. However, as I understand the defendant’s objection, it is not whether the executor has a locus standi to sue the bank, but rather whether the Master of the High Court should have been joined in these proceedings. The plaintiff may well have been within his right to sue the bank for unauthorised debits on the estate’s bank account, but notwithstanding his right to sue, he, in terms of the procedure he ought first to have joined and served the summons on the Master. [8] In order to answer the question whether there was a procedural hurdle which had to be cleared, and whether failure to clear it is fatal to the case, resort must be had to the provisions of Rule 75 of the High Court Civil Litigation Rules 2024 which provide that: “75(1) When an application is made to court whether ex parte or otherwise in connection with the estate of any deceased person or alleged to be prodigal or under any intellectual disability or otherwise, a copy of such application, must, before the application is filed with the Registrar, be submitted to the Master for his consideration and report. If any person is to be suggested to the court for appointment as curator to the property, a person who makes an application for the appointment of administrators or trustees under deeds or contracts relating to trust funds or to the administration of trusts set out by a testamentary disposition or will shall, before the application is filed with the Registrar: (a) submit the application to the Master for his consideration and report; and (b) likewise submit any suggestion to the Master for a report, if any person is to be proposed to the court for appointment as curator to property.” [9] Except for slight difference in the wording between this Rule and Rule 8(19) of the now-repealed High Court Rules 1980, the two rules are similar, therefore, judicial authorities on Rule 8(19) are still applicable to Rule 75 with equal force. Commenting of Rule 8(19) of the now-repealed rules, the Court of Appeal in Qocha and Others v Nthongoa C of A (CIV) NO. 49/2016 (dated 7 December 22018) at para.9 quoting with approval the decision of the High Court of Botswana interpreting a similar rule endorsed a view that non-compliance with this Rule is fatal to the application. The learned author Van Loggerenberg Erasmus Superior Court Practice 2nd ed. Vol.2 (Juta) commenting on a similar South African Rule 6(9) had the following to say – which is applicable in equal measure in our case –: at D1-82: “The object of this subrule is to avoid applications being enrolled only to be postponed so that the court may have the advantage of the Master’s assistance, and not to force an applicant to obtain the Master’s advice in order to learn whether or not he has a case. The subrule does not operate when the Master’s involvement is neither legally necessary nor of assistance to the court…” [10] When the summons in this matter were sued out the plaintiff did not comply with Rule 8(19) and by extension the current Rule 75 because as the plaintiff argues neither the joinder of the Master or service of the summons on the Master before they were lodged was necessary as the executor has all the rights to sue the bank based on the bank-customer relationship in which the Master plays no role. It will be observed that even though when the matter was lodged the case in The Executor Estate Late Robert Mohapi v Teboho Mohapi (above) had not been finalised by the Court of Appeal, it was necessary that the status of the plaintiff as the executor of the estate in question be explained as on the record it was clear that his letters of executorship were not renewed. The report of the Master was legally necessary to shed light on the status of the plaintiff and that of the estate (The Executor Estate Late Robert Mohapi v Teboho Mohapi (above) at para.12). [11] The fact that during the pendency of this matter the plaintiff’s status was clarified in the abovementioned case does not take the plaintiff’s case anywhere: in fact it will be seen that the decision in The Executor Estate Late Robert Mohapi v Teboho Mohapi turned on the procedural issue of the Master not affording the plaintiff the benefit of audi alteram partem rule before removing him as the executor of the estate. As I understand it, in the aftermath of the decision of the Court of Appeal, nothing prevented the Master from affording the plaintiff a hearing on whether he should be removed as the executor. All these points ineluctably to the necessity of joining the Master in these proceedings and serving him/her with the summons before they were lodged for her/him to make a report to assist the court on the locus standi of the plaintiff to sue on behalf of the estate and status of the estate. It follows from this discussion that non-joinder of the Master and non-compliance with rule 75 are fatal to this case. [12] In the result the following order is made: (i) The action is dismissed with costs for non-compliance with Rule 75 of the High Court Litigation Rules 2024. (ii) Costs should be in the estate. _____________________________ MOKHESI J For the Plaintiff: Adv. Phaqane For the Defendant: Mr Q. Letsika from Mei & Mei Attorneys 9